Lawyers of the embattled Bulawayo Deputy Mayor, Tinashe Kambarami, wrote to the city council’s attorneys saying it cannot prohibit their client from reporting for duty.
Kambarami was declared unfit for office by the High Court after a challenge by a social group, 1893 Mthwakazi Restoration Movement (1893MRM).
The deposed deputy mayor then appealed that ruling at the Supreme Court and returned back to office pending appeal.
However, 1893 MRM, through their lawyer, Godfrey Nyoni of Nyoni and Moyo Legal Practitioners wrote to the Bulawayo City Council threatening to sue if it continued allowing Kambarami back to office, declaring his Supreme Court appeal as an incorrect reading of the law.
This prompted Bulawayo town clerk, Christoper Dube, to write to Kambarami prohibiting him from carrying out his council duties.
But in a latest twist, Kambarami’s lawyers, Maqhawe Mpofu of Samp Mlaudzi and Partners told the city council’s legal practitioners, Coghlan and Welsh that his appeal to the Supreme Court was in terms of the Electoral Act and not common law.
“To that effect, we respectfully implore you to have sight of section 171 (8) of the Electoral Act, which is the primary source which reads:
“Notwithstanding any other provision of this section, the noting within the time prescribed in rules of court, of an appeal against any determination or decision of the Electoral Court shall suspend such determination or decision until the abandonment or the final determination or dismissal of the appeal,” said Kambarami’s lawyer.
“Our view is that the provision is clear and pointed as to the effect of an appeal against the decision of the Electoral Court. The provision requires no further qualification interpretation and needs not to be supported by case law.”
Mpofu noted that from such arguments, they trusted the city council would act accordingly and rescind their letter which they had given to Kambarami to stop turning for work.
“As you may know the town clerk has already written to our client on the strength of your advice prohibiting our client from carrying out his duties as a councillor. We trust therefore that you will direct them to rescind their letter without further ado,” he wrote in the letter
This move has received the support of the MDC Bulawayo Province, which believes the High Court encroached into the jurisdiction of a tribunal.
MDC Provincial Spokesperson, Swithern Chirowodza, said the High Court is not a fact-finding tribunal, which is supposed to investigate the suitability and conduct of a sitting councillor.
“This is why we are appealing to the Supreme Court since the High Court cannot assign itself the powers to unseat a sitting councillor. Those powers are vested in a tribunal set up by the Minister of Local Government in terms of Section 278 of the Constitution of Zimbabwe,” he said.
“For a High Court judge to call such a strong constitutional argument ‘a legal nicety’ is a misdirection. The Constitution could not have been clearer in so far as the procedure to remove a sitting councillor is concerned,” he said.
Chirowodza added that Kambarami remains the elected People’s Councillor and would not be toppled by a litigant.
“The Deputy Mayor of Bulawayo, Councillor Kambarami will not be toppled by a litigant who in fact is a mere simulacrum or sham device of the establishment,” he said.
In July 2018, Kambarami pleaded guilty to theft charges and was fined $80 or 18 days in prison for stealing an extension cord from an electrician he had hired to do manual work at his offices.
This caused 1893 MRM and Nomagugu Dabengwa to challenge Kambarami, saying he was unfit for public office as he is a convicted criminal.